GR v Secretary, Department of Family and Community Services and Justice (No 2)

[2019] NSWSC 1725

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GR v Secretary, Department of Family and Community Services and Justice & Ors (No 2) [2019] NSWSC 1725

Hearing dates:

28 & 29 November 2019

Date of orders:

29 November 2019

Decision date:

04 December 2019

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Care orders not set aside; Order made to implement proposed treatment plan to transition child from hospital; Parental responsibility to be determined by Children’s Court

Catchwords:

FAMILY LAW - Children – Parens patriae jurisdiction –Child under the parental responsibility of the Minister in hospital for nearly nine months – Concurrent Children’s Court proceedings - Orders requiring Secretary to consent to proposed treatment plan to transition child from hospital

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073
GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277
Re AB [2019] NSWSC 316
Re Josie [2004] NSWSC 642

Category:

Procedural and other rulings

Parties:

The mother (Applicant)

  Secretary, Department of Communities and Justice (First Respondent)
Minister for Families, Communities and Disability Services (Second Respondent)
The father (Third Respondent)
The child (Fourth Respondent)
Sydney Children’s Hospital Network (Amicus curiae)

Representation:

Counsel:
The mother (Applicant)

 

C McGorey (First and Second Respondents)
The father (Self represented)
E Stolier (Fourth Respondent)
M Windsor SC (Amicus curiae)

 

Solicitors:

  Crown Solicitor (First and Second Respondents)
K Wooi (Independent solicitor for the Fourth Respondent)

File Number(s):

2019/62836

Publication restriction:

No

JUDGMENT

Summary

1. This is the third time this year that, in the constrained circumstances of the Duty List, I have been required to consider an application by the mother for the return of her 15 year old son to her parental responsibility, supported by the father (the third respondent). At the conclusion of a hearing over two days interrupted by other matters, I made the orders set out in paragraph [54] below. In essence, those orders require a process to begin to attempt the transition of the child out of hospital. Whether that transition ends with his parents or otherwise will be for the Children’s Court to determine. These are the reasons for those orders.

2. There is no dispute that the child’s medical and psychological needs are very complex, arising from a diagnosis of Autism Spectrum Disorder Level 3, as a result of which he engages in avoidant restrictive food intake behaviours, which may or may not deserve an additional diagnosis of avoidant restrictive food intake disorder. The child is currently under the parental responsibility of the Minister for Families, Disabilities and Community Services (the “Minister”), the second respondent. With the exception of a short lived and unsuccessful discharge to out of home care, the child has been in hospital for approximately nine months.

3. There is currently part heard before the President of the Children’s Court, a care application under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the “CYP Act”) by the first respondent, the Secretary, Department of Communities and Justice (the “Secretary”), in which the Secretary seeks to have a supervision order formally made in respect of the child, rescinded, and a parental responsibility order in favour of the Minister substituted for it. That hearing commenced on 11 November 2019 and, after seven days of evidence, now stands adjourned for a further five day hearing recommencing on 6 January 2020.

4. By notice of motion filed in Court before Robb J on 17 September 2019, the mother seeks to invoke the parens patriae jurisdiction of this Court for orders to undo the current care arrangements in relation to the child and for him to be forthwith returned to her care. Her application is supported by the father, but is opposed by all the other parties to these proceedings and the amicus curiae.

5. I am satisfied that three matters constitute both a material change in circumstances and exceptional circumstances warranting the Court exercising the parens patriae jurisdiction to have made orders which I am satisfied are in the best interests of the child. Those three matters are the extended period of time the child has now been in hospital, the fact that the Children’s Court proceedings have now had to be adjourned to January 2020 with the consequence that any decision will now be further delayed, and certain observations made by the Court of Appeal in its most recent judgment in these proceedings. Nevertheless, I remain of the view I have expressed in my earlier judgments that the ultimate decision as to who should have legal responsibility for the child should be made by the Children’s Court, exercising its specialist jurisdiction.

6. Respecting the need for that to occur, I am nevertheless persuaded by the unanimous evidence of three eminent experts that orders should be made requiring the Minister and the Secretary to consent to and cooperate in the implementation of the initial phase of a proposed treatment plan designed to bring about the transition of the child from hospital either, it is to be hoped, back to the care of his parents or, if that proves not to be possible, into out of home accommodation under the supervision of suitably trained carers or as the Children’s Court may determine.

7. The mother appeared for herself. The father appeared for himself. Mr C McGorey of Counsel appeared for the Minister and the Secretary. Mrs E Stolier of Counsel appeared for the child, instructed by the child’s independent legal representative. Mr M Windsor of Senior Counsel appeared for the hospital (being where the child is currently being treated) as amicus curiae without objection by any other party.

The litigation history and current facts

8. These reasons should be read with my earlier judgment, which sets out the history of litigation in this Court up to that time: GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073. That judgment was delivered on 21 August 2019 after a hearing conducted on 16 August 2019. On that occasion I declined an application by the mother identical to that which she has pressed again before me.

9. However, I made a number of further orders intended to give the parents a minimum level of access to the child and to permit their participation in his care in a way intended to give them an opportunity to demonstrate their ability to care for him. I have confirmed those orders after this most recent hearing. I made it clear in my earlier judgment that how that process worked out could be relevant to the ultimate decision of the Children’s Court.

10. On 3 and 12 September 2019, Slattery J and Robb J respectively declined to entertain further applications by the mother for relief of the kind which I had refused in August 2019. Their Honours were not satisfied that there had been a sufficient change of circumstances to justify departing from the regime which I had put in place.

11. On 7 November 2019, the Court of Appeal – constituted by Brereton JA and Emmett AJA – refused the mother’s application for leave to appeal from the decisions of Slattery J and Robb J: GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277. However, in the course of delivering the Court’s reasons, Brereton JA (a judge of great experience in matters of this kind) and with whom Emmett AJA agreed, made a number of observations of, with respect, considerable importance and which have in part moved the mother to renew her present application:

“15.   Viewed broadly, there are not insignificant marks of strength to the applicant’s substantive case. The report of Professor Einfeld, in particular, provides significant support for the argument that if – as appears to be the case – the hospitals have not been able to provide a viable solution after nine months, then it is time to see if the parents cannot do any better. The second report of Professor Einfeld – which I think puts the case more strongly than the first – was not before Slattery J, though it was provided to Robb J in chambers before the last of his Honour’s in chambers decisions.

16.   Before this Court, further matters emerged which might well demonstrate a change in circumstances since the judgment of Kunc J. I have referred above to the orders his Honour made in respect of contact with the parents and information about hospitalisation. In an affidavit which was handed up to the Court this morning, Ms Anne Marie Connelly, a Manager Client Services in the Department of Communities and Justice (previously the Department of Family and Community Services), deposed, amongst other things, that [the child] was transferred from John Hunter Hospital to Sydney Children’s Hospital at approximately 10.45am on 1 November 2019; that at 2.02pm that day (that is to say after the transfer had taken place) his parents were notified that he had been transferred; and also that contact visits would not take place until assessments had taken place. It was said that the department had delayed informing the parents of the transfer date and time, due to concerns that the mother may present to the hospital which could cause distress to [the child]. However genuine that view might have been, it is not easily if at all reconcilable with order 3 made by Kunc J, and it was not for the Department to make that decision.

17.   Moreover, at paragraph 30 of the same affidavit, it is said that contact was suspended between 14 September and 24 September. How that is reconcilable with order 2 made by Kunc J, which limits the forming of an opinion that contact is undesirable to a particular occasion, is also not at all clear. It is therefore not difficult to understand why the parents might have come to the view that the Department is acting somewhat unilaterally – in their words, as a “law unto itself” – in these respects. Those matters, which tend to show that what Kunc J was seeking to implement was being circumvented if not defeated, might amount to a change of circumstances which could be raised on a new application in the Equity Division. Most, if not all, of these circumstances arose after the last of the judgments the subject of the present application, and could not have been raised on those applications.

18.   In addition, although this is not clear, there remains a concern that [the child] might be receiving treatment that would require the Court’s permission in accordance with cases such as Marion’s Case [6] and Director‑General, Department of Community Services; Re Thomas. [7] Whether [the child] has been subject to such restraints or confinement as exceeds what is within the scope of ordinary parental responsibility is not at all clear at this stage, but it is equally not clear that he has not been.

19.   Some submissions have been made concerning the mother’s parenting capacity, which is said to be a very important consideration in the Children’s Court proceedings. In many care proceedings, the parenting capacity of a parent is a vital issue. In this case, it will ultimately be a matter for the President of the Children’s Court to weigh the various issues, although one might be attracted to the view that the crucial question here is what course is best going to encourage and incentivise [the child] to eat, rather than concerns about marginal defects in parenting capacity arising from a supposed psychotic illness which, if it exists at all, certainly does not appear to be florid. This is a case in which, perhaps exceptionally, the short term seems to be at least as important, if not more important, than the long term future for [the child].

20.   All those matters, as I have said, give marks of strength to the parents’ case. Against that, on an application for leave to appeal, there are a number of powerful considerations. The first is the proximity, indeed now imminence, of a comprehensive and detailed hearing by a specialist Court. That Court, presided over by a very experienced judge in the relevant specialist jurisdiction, will be able to examine, in much more detail and with much more thoroughness than this Court could, the issues that arise. Moreover, there has been, as it were, a consistent approach since the judgment of Kunc J on 16 August of this year, that the proceedings should be managed in a way which facilitates progressing to a determination by the President of the Children’s Court consequent upon what is now that imminent hearing.

21.   Despite the attraction of the submission that it is now time to “give the alternative a go” and return [the child] immediately to the parents, I am – not without a little regret, but nonetheless firmly – of the view that it would be quite irresponsible and incorrect for this Court to derail the imminent proceedings in the Children’s Court, or to pre-empt them by making a decision on what is, after all, a very short hearing, without cross‑examination of lay or expert witnesses, on issues that are difficult and controversial.

22.   Moreover, it is not established clearly, or for that matter at all, that there is seriously arguable error in the judgment of Slattery J, or those of Robb J, on the facts that were known to them and before them at the time. In my view, their Honours were, with respect, right to say that the circumstances presented to them did not amount to a sufficient change of circumstances since 16 August to justify departing from the course carefully charted by Kunc J towards a full and final hearing in the Children’s Court.

23.   It may be that the matters to which this Court has adverted, and in particular the fact that Kunc J’s regime has in some respects apparently been circumvented, could warrant a different outcome on a further application to the Equity Division. That said, the parents might be well advised to focus for the time being on the impending hearing in the Children’s Court, rather than on a further application to the Equity Division.”

12. On 18 November 2019 the mother caused these proceedings to be relisted in the Duty List. As it happened, I was again the Duty Judge. At that time, the hearing before the President of the Children’s Court was continuing. I made directions for the preparation of a hearing in this Court which allowed for the conclusion of most of the evidence in the Children’s Court (all of which was intended to be available to this Court), adequate time for the preparation of evidence and submissions for the hearing before me and, most importantly, for the three medical experts to consider and report on four questions which I posed.

13. Two of the experts were retained by the Minister and the Secretary. The other expert had been retained by the mother. The four questions which I posed for their consideration and report were:

“1.   What is an appropriate interim regime for [the child] to be returned home to his parents’ care (the “Interim Protocol”)?

2.   Having regard to the prospect of the Interim Protocol, is it medically necessary for [the child] to remain hospitalised?

3.   If the answer to 2 is “yes”, what are the treatment milestones which need to be met before the Interim Protocol can be implemented?

4.   Is there any other reason why it is not in [the child’s] best interests for him to be returned home in accordance with the Interim Protocol?”

14. The joint experts’ report of 26 November 2019 summarised the child’s current circumstances:

“3.   Malnutrition – As of 25 November 2019, [the child] remains underweight at 43.7kg and 157.5cm tall. [The child’s] malnutrition is complicated by inconsistent intake of fluid and food. He remains two to three kilograms below his minimum safe weight.

4.   Poor self-care – [The child] has showered on two occasions since his transfer to [the hospital] after a period of refusal to shower and engage in basic self-care and hygiene for many months.

5.   Lack of verbal communication – [The child] has not verbally communicated with treating staff at [the hospital]. He communicates through a combination of nods and shakes of his head and through written communication. [The child’s] use of these communication forms indicates an understanding of his current circumstances and a clear desire for information regarding his future care and placement. [The child] has expressed a desire to return home.

6.   Resistance to medical interventions to maintain well-being including intravenous fluids when dehydrated, oral medication and nutritional supplements including by naso-gastric refeeding when hypoglycaemic or medically unstable. Since [the child’s] transfer to [the hospital] he has consumed sufficient food and fluid to maintain medical stability and has not needed intravenous fluids or naso-gastric feeds. He has at times agreed to take oral medication though has refused blood tests. Refusal to leave his bed other than to toilet himself and reluctance to engage in standard ward program. [The child] is attending the Hospital School though is going in his bed.

7.   Uncertainty regarding long-term residential placement. This remains an ongoing concern for [the child] who continues to express his desire to go home.”

15. The expert retained by the mother is a highly experienced child and adolescent psychiatrist. So too is one of the two experts retained by the Minister and Secretary. Their second expert, while also a qualified child and adolescent psychiatrist, is primarily a specialist in eating disorders and is head of the specialist unit in the hospital in which the child is currently being treated (to whom I shall refer as “Dr A”). Dr A was a most impressive witness who is clearly determined to do all he can to assist the child, including – to his credit – to work with the parents in the child’s interests, notwithstanding alleged conduct on the part of the mother that could justify a professional person being somewhat reticent about that course.

16. In the course of the experts’ concurrent evidence, Dr A provided this summary (T17:35-T18:6):

“WITNESS DR A: So I would highlight that [the child] is currently not considered an involuntary patient under the Mental Health Act. He is in an open paediatric ward. I think the conclave report details [the child’s] current status. So [the child] is eating, and his eating continues to improve. When I spoke to my team today, he is now eating three times a day, his weight is increasing. He remains underweight at 43.7 kilograms, so while not an immediate life and death risk, at this weight, and if he were to remain at this weight, there would be long term complications for his health, particularly growth, bone health, brain function.

I think [the child] in addition has other very significant needs at the moment. His self-care is poor. He has only just begun showering. He is receiving daily physiotherapy because he has been largely confined to bed up until his treatment with us. At the moment he will get up to go to the bathroom but will not get out bed for other reasons, and that has had complications for him. I believe based on our previous experiences of precipitous hospital discharge which have led to readmission that to discharge him today would put him at significant risk of discharge. I believe the plan—“

HIS HONOUR: Sorry, significant risk of--

WITNESS DR A: Readmission.”

17. Importantly for present purposes, the joint experts’ report included what was referred to as the “proposed interim protocol” which the experts had prepared in response to the first question which I had posed for their consideration. I accept Mr Windsor SC’s submission that to avoid giving the “proposed interim protocol” canonical status with the word “protocol”, it is better to refer to it as the “Proposed Treatment Plan”. The Proposed Treatment Plan provides for a carefully managed and monitored process of transition, including working with the father and mother, with the ultimate intention of restoring the child to the care of his parents out of hospital.

17. I do not propose to set out the detail of the Proposed Treatment Plan, but make four observations about it:

1. The three experts were in general agreement. To the extent there was what could be described as disagreement between the expert retained by the mother and the other two experts, that might better be described as a difference of emphasis and nuance rather than any substantive difference. Importantly, the three experts agreed that the implementation of the Proposed Treatment Plan was in the child’s best interests.

2. The Proposed Treatment Plan is obviously the product of careful and compassionate consideration of the child’s circumstances, informed by deep expertise in managing young people with complex presentations such as those of the child. The Court is well satisfied that it has been prepared with the intention of meeting the best interests of the child and assuring, as far as possible, the maximum likelihood of a positive outcome for the child, including – if possible – returning the child to the care of his parents.

3. The Proposed Treatment Plan includes what might be described as an “initial phase” of reaching the point where the child is at a medically safe weight and the parents are regularly feeding and interacting with the child in the hospital. After that initial phase there are then further steps which began with the child moving with the parents to outpatient accommodation near the hospital such as a serviced apartment or similar.

4. The Proposed Treatment Plan has built into it sufficient flexibility so that if, during the course of its implementation, the treating team comes to the view that, for whatever reason, it is unrealistic to expect that the child will be able to be returned to the care of his parents, the focus of the steps in the Proposed Treatment Plan can be redirected to the appropriate training of other persons to whom the child’s care can be committed in a home-like environment pursuant to the final determination of the child’s status by the Children’s Court.

19. During the course of the hearing, I asked the experts to attempt to identify what objective markers they could that could be used to monitor the implementation of the Proposed Treatment Plan, including giving some indicative time estimates as to how long each step in the Proposed Treatment Plan might take. I immediately acknowledge that, insofar as the time estimates were concerned, the Court accepts the evidence of the experts that any time estimate could be no more than that. The Proposed Treatment Plan relates to the management of a patient whose needs are unusually complex and whose progress under the Proposed Treatment Plan could be faster or slower than the experts expected. That refined version of the Proposed Treatment Plan became Exhibit 11 in the proceedings. It was itself the subject of further refinement during the overnight adjournment between the first and second days of the hearing. That more refined version, together with an addition proposed by the Minister and the Secretary, became Exhibit 12.

The parties’ respective positions

20. The mother’s starting point was essentially that summarised by Brereton JA (see paragraph [11] above) as “”give the alternative a go” and return [the child] to the parents”. However, at the conclusion of the evidence I indicated to the parties that they should address on only two options: either that the Court should do nothing or whether it should order the Minister and Secretary to consent to and cooperate in the implementation of the Proposed Treatment Plan. I did so because it was the unanimous evidence of the experts that immediate return of the child to his mother and father at the family home was not in his best interests (see paragraph [32(3)] below).

21. When the matter resumed on the second day, the parties’ positions in relation to the Proposed Treatment Plan became clear. The mother and father submitted that there were extraordinary circumstances warranting the exercise of the parens patriae jurisdiction (foremost the length of time the child had been in hospital with, it was submitted, little real improvement) and that the Court should order the implementation of the Proposed Treatment Plan. On the other hand, and notwithstanding the unanimous evidence of the medical experts that they thought the Proposed Treatment Plan was in the child’s best interests, the Minister, Secretary, the child’s independent legal representative and the hospital all opposed the Court making any orders, whether to give effect to the Proposed Treatment Plan or otherwise.

22. For the Minister and the Secretary it was submitted that the focus of the Proposed Treatment Plan was principally a medical perspective which provided a potential pathway for restoration to the parents. It was submitted that if the Minister and Secretary were bound to cooperate in the implementation of the Proposed Treatment Plan, they would thereby be bound to a path of restoration of the child to the parents without a proper examination or determination of the other child protection concerns which the Secretary considered relevant. Those matters were properly to be determined in the Children’s Court, because whether the child should be returned to his parents was not confined to the question of whether the child was at a safe weight and that the parents could demonstrate capacity to manage his restrictive eating in the home. The other issues relevant to determining restoration in the Children’s Court were:

1. What is the likelihood of the child’s aggressive behaviours recurring in the home and if that can be adequately managed (if so how)?

2. What would the child’s care look like with the parents (e.g. is one or both parents to be living with the child consistently, who will be providing primary care)?

3. Whether there are risks to the child owing to possible domestic violence in the home environment with the parents?

4. Whether the parent taking the primary role in the child’s care will have adequate capacity to meet the child’s needs?

23. Next, the Secretary and the Minister drew attention to the statutory framework for the exercising of parental responsibility under the CYP Act. In particular, it was submitted that under the statutory framework, where the Children’s Court vested the Minister with parental responsibility on an interim basis pending it making the final determinations under s 83 of that legislation, the Children’s Court could not fetter or direct how the Minister should exercise parental responsibility: Re Josie [2004] NSWSC 642. While it was accepted that the parens patriae jurisdiction is not subject to such fetters, it was submitted that the scheme of the CYP Act demonstrated that there was a public policy which recognised that those vested with parental responsibility ought to be permitted to exercise it as they deemed appropriate rather than through prescriptive orders.

24. The Secretary had already provided his assessment in the Children’s Court proceedings that on all the available evidence (not limited to the medical evidence) there was no realistic possibility of restoring the child to the parents within a reasonable time. It remained a matter for the Children’s Court whether that assessment was accepted. Nevertheless, it was submitted that in the meantime the Court should not order the Secretary to comply with the Proposed Treatment Plan insofar as its underlying assumption – the possibility of restoring the child to the parents – was contrary to the view which the Secretary had formed and expressed to the Children’s Court.

25. It was also submitted that the making of an order in relation to the Proposed Treatment Plan was unnecessary, because the Secretary supported the parents engaging with the child’s current treating team, subject to them doing so in a respectful and constructive manner. The Secretary supported what I have referred to as the initial phase of the Proposed Treatment Plan, but submitted that it was clear from Dr A’s evidence that there was no need for the Court to make orders for those steps to occur. The Secretary accepted that such a process would provide important information for the purposes of the Children’s Court proceedings. However, for reasons already referred to, this was not the only matter that would inform the ultimate decision of the Children’s Court.

26. Next it was submitted that requiring the Secretary to consent to and cooperate in the implementation of the Proposed Treatment Plan would open the Minister and the Secretary to further applications in the parens patriae jurisdiction by the parents who would contend that, somehow, the Minister and Secretary had not complied with that order. There had already been multiple applications to judges sitting in the Duty List, in circumstances where the duty judge has limited time to familiarise herself or himself with the complexity of the proceedings and properly to understand the circumstances that have informed any orders the Court might have made.

27. It was submitted that the making of an order in relation to the Proposed Treatment Plan would distract from what was in the child’s best interests, namely that the parties should focus on the Children’s Court proceedings and the procedure in that jurisdiction. Making any order in relation to the Proposed Treatment Plan would simply risk a perpetuation of more applications to this Court. This would particularly be the case because ordering the implementation of the Proposed Treatment Plan would create an expectation in the parents that if they complied with the plan, the child would be restored to them. If, for whatever reason it began to appear that was not going to be the outcome, the parents would inevitably again seek to invoke the jurisdiction of this Court.

28. Finally, it was submitted that, rather than making any orders, it would be sufficient for the Court to deliver a judgment setting out the expert evidence, the consensus reached and expressing whatever positive views the Court may have formed about the desirability of implementing the Proposed Treatment Plan. In Mr McGorey’s words (T29.11.19 at 9:33) “That in itself will be a powerful yardstick by which future courts and parties will be guided”.

29. The submissions made by Mrs Stolier on behalf of the child’s independent legal representative may be summarised as:

1. The evidence of the child’s current medical condition was that he appeared to be gaining weight and that there was no immediate risk to his life. In those circumstances there were no exceptional circumstances which warranted invoking the parens patriae jurisdiction. Furthermore, the Court should be especially slow to do so when there was a hearing part heard in the Children’s Court.

2. Irrespective of what the Court did, the Children’s Court should be able to be given the material and transcripts of the evidence that had been before me.

3. There was a presumption of restoration to the parents implicit in the Proposed Treatment Plan. If the Court was to make orders in relation to the Proposed Treatment Plan, it should only be for the implementation of the initial phase where the parents were regularly feeding the child in hospital. The next stage involved at least a de facto restoration of the child to the parents in accommodation outside of the hospital, which was a matter which should be decided by the Children’s Court. In any event, on the indicative timings given by the medical experts for the steps comprising the initial phase of the Proposed Treatment Plan, those would still be under way when the Children’s Court proceedings resumed in January.

4. Undertakings should be sought from the parents not to discuss with or suggest in any way to the child that he would in fact be going home into their care, and that if the matter was raised by the child it should be made clear that where he would ultimately go was a matter for his treating doctors and the Children’s Court. It was submitted that it would be devastating for the child, particularly after one already unsuccessful discharge from hospital care, to leave him vulnerable to what would undoubtedly be extreme disappointment if any expectations that may have been generated that he would be going home to his parents were not fulfilled.

30. The submissions put on behalf of the hospital may be summarised as:

1. Exceptional circumstances had not been made out. The regime of care and management being provided to the child was not punitive, not coercive, and did not constitute incarceration. Under the professional care of the hospital his weight was being stabilised, the child was becoming more cooperative in his hygiene and has begun to attend school. There was no suggestion that he was likely to undergo any invasive surgery and there were no other features that would warrant the urgent or exceptional intervention of this Court.

2. The Court should, as it had done previously, proceed in a way that respected the primacy of the specialist jurisdiction of the Children’s Court. Nothing should be done pending the resumption of the hearing in the Children’s Court beyond making the material that had been adduced for this hearing available to that court, including the experts’ joint report. This Court should not derail the Children’s Court proceedings or pre-empt them by making any decision on issues which were difficult or controversial and which should ultimately be decided by the Children’s Court.

3. The Proposed Treatment Plan had been prepared “on the run”, was indicative and would require further development. Such a plan was not one which was suitable to be effected by orders made in the exceptional jurisdiction of this Court, particularly when it was capable of being misinterpreted and misconstrued.

4. The Proposed Treatment Plan was not comprehensive, in that it did not provide for other things which could also be required. One example was what would happen if the treating team considered at some point in the future that it was desirable for the child to undergo a bone scan or a blood test. The limited nature of the Proposed Treatment Plan ran the risk that points of contention would be created when the treating team wanted to do something that was not specifically referred to in the Proposed Treatment Plan.

5. The Proposed Treatment Plan included a reference to any disputes about its implementation being resolved within the hospital’s existing system involving referral to the Clinical Governance Unit. It was inappropriate to place the onus on the hospital to run a dispute resolution system rather than leaving responsibility with the Minister. The Proposed Treatment Plan was, in the words of Mr Windsor SC (T29.11.19 – 16:20-22), “a document which might be misconstrued, misconceived and otherwise misinterpreted such that it causes more difficulty than might otherwise be the case”.

6. The Court should not make any orders because they would necessarily divert the focus of the parties, in particular the parents, away from the continuing hearing in the Children’s Court.

7. The Court could be comforted that it was the unanimous view of the parties other than the mother and the father that the Court should make no orders.

8. Dr A had explained that he and his unit would, in any event, be implementing a transitional process for the child to leave the hospital. This should be allowed to be worked through over time and would happen without the need for any prescriptive order from this Court.

9. The hospital supported the material that had been before this Court, (including the Proposed Treatment Plan and the transcript of evidence) being referred to the Children’s Court for its consideration as part of the ongoing hearing recommencing on 6 January 2020.

31. Finally, for her part the mother, supported by the father, sought for the entire Proposed Treatment Plan to be ordered to be implemented and that the Secretary be removed from having any role in consenting to medical procedures for the child because of what she described as the “very poor decisions” that had been made to date. She also submitted that the Secretary be removed from having any role in determining who should supervise visits by the parents.

Consideration

32. It is convenient to begin with some general factual and legal propositions or conclusions:

1. There is no doubt that the child’s parents love him and want to do their best for him. They have both indicated to the Court that they are willing to cooperate with the medical team and case workers in the implementation of the Proposed Treatment Plan.

2. The child’s medical circumstances are highly unusual and complex. Any parent would find caring for the child to be very challenging.

3. The expert evidence makes it clear that simply to release the child immediately to the care of his parents out of the hospital would be contrary to the child’s best interests. The Court accepts the expert evidence that a carefully managed transition with multidisciplinary professional support is required to bring the child to the point that he can safely leave the hospital (whether into the care of his parents or some other arrangement).

4. The child is currently being cared for by what is one of the foremost specialist medical units in this part of the world dedicated to treating eating disorders. Those treating him are committed to giving him the best of care and do not wish for him to be in hospital any longer than is clinically necessary.

5. The proper venue to determine who is ultimately legally responsible for the child is the Children’s Court exercising its specialist jurisdiction. The orders which I made were advisedly drawn not to interfere with the proceedings in that court and not to even remotely suggest that this Court was attempting to dictate how that court should exercise its heavy statutory responsibilities in relation to the child.

6. The parens patriae jurisdiction, particularly insofar as it may be invoked in matters which would otherwise fall within the purview of the Children’s Court, is an extraordinary jurisdiction to be exercised in exceptional circumstances, sparingly and with care.

7. Interlocutory orders are generally only revisited where there has been a material change in circumstances.

8. It remains the law that, prima facie, it is in the best interests of children to be raised by their parents in a safe and loving home environment. However, the law does not hypothesise or require “perfect parents” or “ideal families” of the kind famously depicted by Norman Rockwell on the cover of The New Yorker in the last century. Parents dealing with their own economic, emotional, psychological, social or physical challenges are not thereby automatically disqualified from raising their own children. However, what is of paramount importance in any particular case is the best interests of the child including their physical, emotional and psychological wellbeing and safety. The law in this area is solely directed to what is in the best interests of the child and not what might be in the interests of the parents.

9. The Court accepts the submission made on behalf of the Minister and the Secretary that the child’s medical issues, including whether or not his parents are able to feed him, are not the only matters which will inform the ultimate decision of the Children’s Court about who is to have legal responsibility for the child. There are, for example, child protection issues that remain unresolved including allegations of domestic violence or aggression in the home, dysfunctional relationship dynamics, and an inability to adequately engage with therapeutic interventions.

10. I am not deciding any questions relating to the compliance of the Minister and Secretary with my earlier orders, or the truth of allegations about the conduct of the parents to hospital staff or case workers, or the allegations of the parents about how they say they have been treated by case workers and other staff (not hospital staff) retained on behalf of the Minister and Secretary. Nevertheless, I add my voice to that of Brereton JA in expressing serious concern that there does appear to be prima facie evidence that the orders I made on 16 August 2019 have not been obeyed.

1. During the course of argument, I raised an issue about whether the Court should make an order requiring the Minister and the Secretary to approach the Court for the Court’s approval if, in the opinion of the treating doctors, it became necessary for the child to undergo extraordinary treatment of the kind which precipitated their application that first came before Pembroke J earlier this year (see my judgment in Re AB [2019] NSWSC 316). Fortunately, there is no evidence that, in the current circumstances, a repeat of such treatment is likely now or in the foreseeable future. There is therefore no basis for the Court to make any order about that subject matter on this occasion. Furthermore, the Court is satisfied (based on the earlier application) that the Minister and Secretary have an appropriately conservative view of the limits of the legal responsibility currently vested in them.

33. The regime which I put in place in August was interlocutory. The change in material circumstances now warranting reconsideration of that regime, as well as the extraordinary circumstances now warranting exercise of the parens patriae jurisdiction, are, in my view, the same:

1. The foremost reason is the extended period the child has now been in hospital, being nearly nine months. This was broken by a brief and unsuccessful attempt to move the child into out of home care. I accept Dr A’s opinion that the reason for the failure of that process was that it was “precipitous” (to use his word), without an adequate transition period including to ensure the presence of a consistent and appropriately trained group of people to care for the child. The three experts agreed that there are no medical reasons which prevent the commencement of the implementation of the Proposed Treatment Plan, which includes as its first step achieving the child’s minimum safe weight.

2. The adjournment of the Children’s Court proceedings to January 2020, with the consequential further delay in a final decision.

3. The observations of the Court of Appeal set out in paragraph [11] above.

34. I do not accept the submission put by the parties other than the parents that the comparatively positive evidence about the child’s current medical condition (see paragraph [16] above) means that there are no extraordinary circumstances warranting the Court’s intervention. In many cases that submission would be correct. However, the length of time the child has been in hospital is, in and of itself, sufficient to overcome that submission because it is itself an extraordinary circumstance.

35. Having regard to the matters in paragraph 33 above, I am firmly of the view that it is in the child’s best interests for the initial phase of the Proposed Treatment Plan to be immediately implemented. There are at least three reasons for this conclusion.

36. First, it is plainly in the child’s best interests that he leave hospital as soon as it is safe for him to do so, taking into account his diagnosis, prognosis and complex needs. Accepting that the Minister and Secretary, together with the other active parties in these proceedings, have been understandably consumed by the Children’s Court proceedings and the present application, the time has come to focus on implementing a strategy for the child to leave hospital to be returned to his parents if that is the decision of the Children’s Court and otherwise to a suitable home-like environment.

37. Second, the best outcome for the child is that he be returned to the care of one or both of his parents, if that is possible having regard to all of the circumstances which will be considered in the Children’s Court. Implementation of the initial phase of the Proposed Treatment Plan maximises the prospects of the parents being able to demonstrate their suitability for the child to be returned to them, at least insofar as being able to show that they can feed and interact with the child in an appropriate way. I emphasise that the implementation of the initial phase of the Proposed Treatment Plan is not for the benefit of the parents. Rather, it is in the child’s best interests that his parents be given the opportunity to demonstrate their capacity for him to be returned to their care.

38. Third, while not a dispositive consideration, economic realities should not ignored. It is well established in the parens patriae jurisdiction that considerations of cost are not relevant when determining what is in a protected person’s best interests. The classic example is those cases where considerations of the cost of medical treatment play no part in the Court’s decision making if it is otherwise in the interests of a person to continue to receive a particular treatment. Nevertheless, in a case such as the present I am respectfully of the view, reflecting what I am confident are community expectations, that the child’s parents should be given every opportunity (assuming it is safe for the child) to demonstrate their fitness for the following reason. While not the subject of precisely quantified evidence before me, it is obvious that if the child is able to be cared for by his parents at home with NDIS support, that is likely to cost less than one of the alternatives that has already been attempted under governmental care, being provision of a serviced apartment and round the clock carers. I stress that if the latter is in the child’s best interests, the cost is not a reason why that should not be done. Nevertheless, the higher cost of such an alternative is a proper reason to ensure the prospects of restoring the child to his parents have been fully explored.

39. It will be noted that in expressing my conclusion I have referred to the initial phase of the Proposed Treatment Plan. This is because in formulating the orders which I made at the conclusion of the hearing, there were two matters in relation to which I accepted the submissions of Mrs Stolier for the child’s independent legal representative.

40. First, as I have recorded in paragraph [29(3)] above, Mrs Stolier pointed out that the Proposed Treatment Plan contemplated, as part of the transition, releasing the child to the parents for ongoing observation and supervision out of the hospital in a serviced apartment or similar accommodation. I accept her submission that to allow that to occur would be to trespass into an area which should be decided by the Children’s Court. As it happens, assuming the several steps which comprise the initial phase of the Proposed Treatment Plan occur within the indicative timings proposed by the experts, those steps will still be under way when the Children’s Court hearing resumes in January. Whether those further steps out of the hospital should be taken, by whom and if at all, will be matters for the Children’s Court.

41. Second, as I have recorded in paragraph [29(4)] above, Mrs Stolier submitted that any relief which contemplated the engagement of the parents with the child should be conditioned upon an undertaking from the parents not to raise false hopes in the child’s mind that he would in fact be going home to their care. I accept that it could be seriously detrimental to the child’s progress if the parents were able to build up his hopes (reflected in his repeated statements that he does want to go home, presumably at least to his mother if not both of his parents) for such hopes to be dashed if that is not the decision of the Children’s Court. A suitable form of undertaking was framed by the Court and was proffered by both parents.

42. I do not accept the submissions of the Minister and the Secretary that ordering them to consent to and co-operate in the implementation of the initial phase of the Proposed Treatment Plan puts them at risk of inconsistency with the position for which they have advocated in the Children’s Court. The orders which I made do not interfere with their ongoing exercise of parental responsibility. No does they require them to change their position in the Children’s Court if, when that hearing resumes, they remain of the same view. However, as I explain in paragraphs [47] and [48] below, the Court does expect the parents to be given, in good faith, the opportunity represented by the initial phase of the Proposed Treatment Plan, to the extent that the treating team do not advise the Minister and Secretary otherwise in the future.

43. I also reject the emollient submission that it would be sufficient for the Court to deliver a judgment saying something positive about the Proposed Treatment Plan and not make orders. For the reasons I have given, I was satisfied that orders should be made in the best interests of the child. Without suggesting that the parties would not take into account any views I may express were I nevertheless not to make any orders, it could equally be said that any reference to those views would be met with the observation that, whatever the Court may have intimated in its reasons, it had nevertheless declined to make orders.

44. Finally, I do not accept the hospital’s submissions to the effect that the Proposed Treatment Plan was somehow a hurried document expressed in a way which would be productive of doubt and dispute. The experts had the advantage of an adjournment overnight to make refinements and none of them expressed any qualifications about its utility for want of clarity of expression. My conclusion applies with greater force in relation to the expression of the steps comprising the initial phase of the Proposed Treatment Plan. In any event, the orders which I made were drawn to make clear that its ongoing operation was a matter for the treating doctors and that the Minister and Secretary were not bound as to their response to future developments.

Some concluding observations

45. There are three final observations which should be made.

46. First, no one should be in any doubt that, unless and until the Children’s Court decides otherwise, legal responsibility for the child remains with the Minister and the Secretary under the existing legal regime.

47. Second, I do not accept that the possibility of further applications to this Court is in and of itself a sufficient reason no to make orders which I am otherwise satisfied are in the child’s best interests. However, all parties – but especially the mother – must understand that it is not the proper function of this Court in the exercise of its parens patriae jurisdiction to micromanage or supervise the child’s treatment, including insofar as that involves the implementation of the Proposed Treatment Plan. The implementation of that plan (including any variations or cessation) is a matter to be determined primarily by the child’s treating doctors. The Court expects the Minister and the Secretary to cooperate in that process and has no reason to think that they have not in the past, or will not in the future, continue to act in accordance with the medical advice that is offered.

48. The Court also expects that cooperation to extend to the implementation of the Proposed Treatment Plan insofar as it involves the child’s parents, notwithstanding that the Minister and the Secretary have advocated to the Children’s Court that there is no realistic possibility of restoring the child to his parents. The Court’s orders are not intended to derogate from the Minister and Secretary’s responsibility in relation to, for example, whether or not there is supervision when the parents visit the child. However, insofar as those visits are part of the implementation of the Proposed Treatment Plan, the Court expects the issue of supervision of such visits primarily to be decided by the treating doctors, whose advice the Court expects will be accepted unless there is a very good reason otherwise in the best interests of the child. The Court has no doubt that if the treating doctors have any concerns about the parents being with the child unsupervised, they will recommend that should not occur, even if that departs from what is otherwise hoped for under the Proposed Treatment Plan.

49. Third, I respectfully echo what was said by Brereton JA in the Court of Appeal, that it may be thought to be in the child’s best interests that his parents focus on the Children’s Court hearing and making the most of the regime which I have now put in place. Much was said during the course of the hearing (including by me) in relation to the behaviour of the parents, in particular concerning allegations (which I have not determined) about their conduct towards hospital staff, case workers and carers. I fully appreciate how stressful the child’s circumstances have been for the parents. Nevertheless, the Court’s orders have been made in the expectation that the child’s parents will be respectful, collaborative and courteous in their dealings with anyone connected with the child’s care, including hospital staff, case workers, carers and the representatives of the Minister and the Secretary. Equally, the Court has every confidence that such behaviour by the parents will be reciprocated by those other persons.

50. Appropriate behaviour on the part of the child’s parents is in the best interests of the child because it is a step along the way to demonstrating that the child could (not should) be returned to where the law and the community regard any child as properly belonging, namely in the care of his or her parents in the absence of significant circumstances demonstrating that such restoration is not in the best interests of the child. The child’s parents should be left in no doubt by what I said to them during the course of the hearing, and now reiterate in what follows. The Court’s objective in making the orders which I did in August and at the conclusion of this most recent hearing, is to ensure that if the Children’s Court, in the exercise of its specialist jurisdiction, does not ultimately return parental responsibility to the mother or father or both of them, it will not be for want of them having been given every possible opportunity (subject only to the safety and wellbeing of the child) to demonstrate that such a return was in the best interests of the child.

Costs

51. Two matters in relation to costs should be recorded.

52. First, the mother’s notice of motion sought costs orders in relation to previous hearings. Given the time constraints of the hearing before me and its singular focus on the current circumstances of the child, neither evidence nor submissions were directed to this aspect of the mother’s notice of motion. The dismissal of the notice of motion does not prevent the mother making an application for costs to the extent she may be entitled to them in relation to appearances where no costs order was made. However, I again encourage her to focus on the opportunity presented by the orders I have made and on the Children’s Court proceedings.

53. Second, in relation to the costs of the hearing before me, I indicated that my disposition was to make no order as to costs. This had been the outcome at the earlier hearing before me in August 2019 and also in the Court of Appeal. Mr McGorey submitted that the costs of this hearing should be reserved, on the basis that the ultimate outcome of the mother’s amended summons (which is now the moving process in the proceedings) may be relevant. I respectfully disagree. This latest hearing before me has been a discrete exercise confined to the evidence of circumstances as they stand at the moment. Having regard to the wider costs discretion that applies in the exercise of the parens patriae jurisdiction as opposed to more usual adversarial litigation, I was satisfied that the appropriate exercise of the costs discretion was for the Court to make no order as to costs with the intention that each party bear his, her or its own costs.

Orders

54. The orders which I made at the conclusion of the hearing were:

“Upon the undertaking to the Court of the applicant and the third respondent not to suggest to [the child] that he will eventually go home with them and that they will respond to any enquiry on that topic from [the child] to the effect that whether he goes home is a matter for his doctors and the Children’s Court; the Court:

1.   Orders that until further order of this Court or the Children’s Court of New South Wales the first and second respondents by themselves, their servants or agents, consent to and, to the extent necessary, cooperate in the implementation of the proposed treatment plan for [the child] set out in Annexure A to these orders.

2.   For the avoidance of doubt, Order 1:

(a)   does not prevent the suspension, variation or amendment of that plan by [the child’s] treating doctors if they consider it to be in [the child’s] best interests to do so;

(b)   does not require the first and second respondents to consent to or cooperate in any such suspension of, or variation or amendment to, that plan.

3.   Grants leave to the parties to adduce in the proceedings before the Children’s Court entitled 2018/xxxx – Department of Communities and Justice and [the child], any of the evidence, transcripts or submissions in these proceedings.

4.   Dismisses the applicant’s motion filed 17 September 2019.

5.   Makes no order as to the costs of that motion.

6.   Vacates the return date of the Amended Summons fixed for 2 December 2019 and appoints 5 March 2020 as the return date for the Amended Summons before the Registrar with liberty to restore on seven days’ notice.

7.   Grants liberty to any party to apply on 3 days’ notice to the Associate to the Duty Judge in relation to the implementation of Order 1.

8.   Confirms the following orders made on 16 August 2019 by Kunc J:

“2.   Permit any combination of his parents or grandparents not exceeding two persons to visit [the child] not less than twice weekly unless the Minister for Families, Disabilities and Communities (the “Minister”) or his delegate is of the view that any particular visit should not take place.

3.   Promptly notify each of his parents (if possible, not less than 24 hours before) of any proposed or actual hospitalisation of [the child] and the reasons for it.

4.   Permit each of the parents, if they wish, to be trained in the use of the nasogastric tube for [the child] and any other specific training that has been or will be given to [the child’s] carers.

5.   Subject to the ultimate control and decision of the Minister or his delegate in consultation with the relevant health or other professional, permit each of the parents, if they wish, to be present at and, where appropriate, participate in therapeutic sessions or medical or psychiatric examinations of [the child].”

9.   Vacates orders 1 and 6 made on 16 August 2019 by Kunc J.

ANNEXURE A TO ORDERS MADE BY KUNC J ON 29 NOVEMBER 2019

2019/62836      RE GR v The Secretary

Goal weight; 45-46kg - likely achieved in 3 weeks.

Multi-disciplinary Assessment within two weeks for up to 3 two hour meetings.

Supervised meal (supervised by member/s of the eating disorder service family therapy team) following multi-disciplinary team assessment within two weeks of the commencement of the treatment plan.

o If [the child] successfully completes the meal safely (no absconding, no deliberate self- harm, no aggression towards parents and no parental aggression towards [the child] or staff {verbal or physical}, without restraint or force feeding) then the plan will progress to the next stage.

Subsequent weeks- Indicative time frame 2 weeks.

If supervised meal is successful, then the treatment team would move to 3 meals on the ward conference room with parents providing food. This would ideally be at lunch occurring on the ward between 12.30pm and 1.30pm. This would occur without other staff members in the room unless there was risk to safety or significant distress for [the child] or his parents.

If [the child] is able to complete these meals without distress/safely, then the treatment team would move up to 2 meals a day off the ward but in the hospital grounds, supervised by his parents. Meals would take place at scheduled meal times according to the time table detailed in the written parent handout describing the Eating Disorder Treatment Program.

1.   DCJ caseworkers will be part of progress and case review meetings for [the child] involving [the child’s] treating team.

2.   DCJ caseworkers will be provided updates from the Treating Team as to the parents’ progress in engagement and AB’s progress.

3.   DCJ caseworkers will not attend or participate in the family assessment carried out by the [hospital] multi-disciplinary team (although it can seek update from the treating team as to the outcome of that assessment).

4.   The parents are expected to engage in a respectful and constructive manner with DCJ caseworkers and persons contracted to perform supervision.

5.   It is understood that DCJ caseworkers wish to engage the parents to explore other matters of concern to the Secretary including about [the child], home life prior to [the child] being assumed into care, what arrangements the parents are proposing for the future (if [the child] is restored to their care) and their willingness to engage with services (this information is sought to inform the Secretary’s assessment of risk for [the child] and his assessment as to the possibility of restoration).

6.   The treatment plan in no way binds or compels the Minister or the Secretary to support a restoration of [the child] to the parents’ care or how parental responsibility is to be exercised (including as to the arrangements for supervision of contact between [the child] and his parents).”

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Amendments

05 December 2019 - Paragraph 33(3) - [X] changed to [11]

Decision last updated: 05 December 2019